The victim sets the criminal law into motion and then goes into oblivion. Once a victim reports a crime to the police, then the police, lawyers, court officials, judges/magistrates take over. What actually happened to the victim, frequently seems to matter only in-sofar as it guides law enforcement officials in determining how much attention to give to the complainant and how to classify or define the offence. For the most part, victim's opinions are rarely solicited; personal costs incurred by the victim are considered irrelevant.
Instead what was once a private matter becomes the business of strangers to be handled mainly as they see fit. The working assumption of the criminal justice system is that, despite this transfer of interest, the victim will come forward and cooperate, because although the State brings the prosecution, yet, without the victim's cooperation the entire case can fall apart10. Thus very often the victim suffers a secondary victimization in his interaction with the criminal justice system, which may lead to disenchantment, disinterest and future non-cooperation, not only by the victim but also by his friends and relatives.
This indifference and lack of concern towards the victim by the criminal justice system is reflected in the Code of Criminal Procedure11, 1973 which has no special provisions specifying the role of victims during criminal proceedings or any provisions to protect and enhance the rights and interests of the victims during their interaction with the criminal justice system. Let us now take a look at the victim's interaction with the criminal justice system and the role he plays once the criminal law is set into motion: Meeting the Police The victim's first contact with the criminal justice system is with the police.
Very often the police will remain the closest agency to the victim throughout the investigation of the case and the prosecution of the offender. When the victim first meets the police, he becomes caught up in the police process of investigating the offence and prosecution of the offender. Once he has decided to report the case, much of the power to direct the way the case proceeds passes to the police. At the same time the victim requires an emergency response by the police to provide aid and assistance. The detection of crime is a significant aspect of the criminal justice process.
The victim, being the recipient or sufferer of the consequences of the conduct of the accused person has to play a crucial role in the process of identifying the offender and establishing the essential grounds for ensuing that justice is done. The police requires the moral support and cooperation of the victim to prepare the case for the prosecution before the court in addition to tracing and apprehending the offender. The victim is expected to be able to give a detailed physical description of the offender and to narrate the facts and circumstances in which the crime took place.
The victim may also be asked by the police to identify the offender in an identification parade12. Victims often complain that the police are unhelpful. Unhelpful here means that the police are officious, accuse the victim and show no empathy or do not believe the victim. The most common problems suffered by most of the victims while reporting an offence is the absence of receptive and sympathetic attitude on the part of the police towards the victim who has come to the police in a state of tension caused by the trauma of the offence that has been committed against him13.
Occasionally, in addition to the unhelpful attitude, the harassment of the victim by the police is not an uncommon feature14. Thus the police must get rid of this unhelpful attitude towards victims because if the victim gets disillusioned with the criminal justice system after meeting the police he may lose faith in the system and refuse to cooperate and this would lead to the collapse of the criminal justice system. Investigating the Offence Once an offence has been reported to the police the focus for determining subsequent action moves from the victim to the police.
The police will be concerned with gathering evidence so that the accused can be prosecuted. The victim will be involved in or concerned with many of these activities and decisions but it is the police who will usually set the timetable and control what is happening15. In criminal offences the victim is usually a major prosecution witness. The evidence that he can provide will include not only his statement of what happened, but also evidence of the injuries he sustained, identification evidence as to the offender, samples for forensic analysis and evidence as to the place of the offence16.
During the investigation process victims want to know all sorts of details: whether the offender is caught, what the charges are, whether the offender has been released on bail, what would happen next, what the victim would be required to do and when. Unfortunately though the victim is vital to the police throughout the recording, detection and investigation of the case the police are not concerned to fulfill the victim's need to be informed, occasionally consulted and to be treated with dignity and respect17.
Thus there are two contradictory facts on the role of the victim- his practical importance to the prosecution case and an ignoring of his attitudes and experiences by those involved in recording and investigating offences- the police. Victim and the Court Whether an offender is released on bail or whether he is remanded in custody is of great interest to victims. However this information is very rarely furnished to the victims. The victims generally have little idea of the progress of the case through the various pre-trial appearances. Victims are usually almost completely uninformed about the progress of their case prior to the trial.
They only information they may receive from official sources- the summons is itself found to be uninformative, confusing and adds to the victim's worry18. For those victims who attend court, the experience is not confined to answering questions in the witness box or listening to what is being said. There are the contracts they may have with the police and the courts when being summoned to come to court. There is the experience of waiting outside the courtroom and the contact they may have there with police officers, prosecution solicitor or counsel, or the offender.
Even after giving evidence, there is the problem of obtaining witness expenses and whether these meet the costs of victims in attending court19. The victim is not considered to have any special interest in the proceedings, compared to any other prosecution witness. In the courtroom too he feels manipulated by the prosecution and the defence who use the structure of formal questioning to present their own view of the offence20. The changes in the criminal justice system necessary to come close to the present expectations of victims are not major or structural ones. They are primarily attitudinal.
The victim's problem in participating in the criminal justice system may be seen as due to his lack of status, or even accepted role within that system. If the victim is a non-person in the eyes of the professional participants21, at least as far as the day to day functioning of the system is concerned, then he will not be informed or consulted as a matter of course. Even if those participants accept the desirability of retaining his goodwill (because of his evidential usefulness), any information flow will tend to be one way. The victim will be told what is deemed necessary or helpful to tell him.
It is only if the victim is seen as being an important partner in the criminal justice system that the flow of information will automatically become two-way and consultation will occur. For example, the victim might have the right to know the outcome of the case and be able to determine how this information is presented to him. However any changes intended to meet present victim expectations would involve teaching the professional participants in the criminal justice system that the victim is to be treated courteously, kept informed and consulted about all stages of the process.
They involve treating the victim as a more equal partner. That, however, would imply a greater emphasis on the role of the victim, and potentially, less emphasis on the role of the offender and that of the legal profession. This might include a shift in working practices of the professional participants that might initially appear to involve more work, more difficulty and more effort but, paradoxically, may result in easier detection, a higher standard of prosecution evidence and fewer cases of prosecution failure22. * Victims Of Sexual Offences
The grievances of victims of sexual offences especially rape are many and they take a number of forms. When the victim of rape approaches the police station she enters into the gateway of the criminal justice system where she is faced with interrogation, which leads to medical examination in an environment where she feels uneasy because the incident of rape is again brought on the surface of the mind of the victim, which is followed by harassment, delay and adjournment in repeated court appearances, insult at the hands of the defence lawyer and loss of earnings. Thus the path to justice for a rape victim is slow and painful.
In the adversarial system of trial the judge plays a passive role and often exhibits his helplessness in checking lengthy cross examination of the victim during which she is insulted and embarrassed by the defence lawyer whose only concern usually is acquittal of the accused. Thus, the trauma of rape is followed by the trauma of narrating facts to the police during investigation, which is again followed by the trauma of undergoing an intimate medical examination and which culminates in the trauma of the court- room when the victim is subjected to cross- examination.
The Supreme Court of India has taken note of the flaws in the system and through its decisions has been consistently trying to rectify these flaws by enabling the victims of rape to play a major and effective role during criminal proceedings and at the same time protecting their rights and interests so that the path to justice for the victim of rape is smooth and speedy. Right of Privacy of Rape Victims In State of Punjab v. Gurmeet Singh23 the Supreme Court of India held that the trial of rape cases must be done invariably in-camera rather than in open court as envisaged Section 327(2) of the Code of Criminal Procedure, 1973.
The Supreme Court also pointed out that it would be unlawful for any person to print or publish any matter in relation to the proceedings of such cases except with the previous permission of the judge of the court as per provisions of Section 327(3) of the CrPC24. The further dictum of the Apex Court was that wherever possible, it would be desirable that sexual assault cases on women are tried by lady judges so that the victim can make her statement with greater ease and assist the courts to properly discharge their duty without allowing the truth to be sacrificed at the altar of rigid technicality while appreciating evidence in such cases.
Award of Interim Compensation to the Victims of Sexual Offences- Pending Final Decision of the Criminal Case In Bodhisattvwa Gautam v. Subhra Chakraborty25 it was alleged by the complainant Subhra that the accused Gautam not only induced her to cohabit with him by giving her a false assurance of marriage, but also fraudulently went through a certain marriage ceremony with her with the full knowledge that it was not a valid marriage ceremony and thereby dishonestly made the complainant to believe that she was the lawfully married wife of the accused.
It was further alleged that the accused committed an offence of miscarriage by compelling the complainant to undergo abortion twice against her free will. The judicial magistrate took cognizance of the offence under Sections 312, 420, 493, 496, 498A of the Indian Penal Code and issued summons to B. Gautam for facing the trial. Goutam in the mean time moved an application in the Guwahati High Court under Section 482 of the CrPC for squashing all the criminal proceedings initiated by Subhra.
The Guwahati High Court rejected the application and thereafter Gautam approached the Supreme Court by way of special leave petition in order to squash the criminal proceedings initiated against him. On consideration of the facts and circumstances of the entire case, the Supreme Court not only dismissed the appeal preferred by Gautam but also issued suo motto notice to Gautam calling upon him to show cause as to why he should not be asked to pay reasonable amount of compensation for maintenance of Subhra during the pendency of the prosecution pending against him.
On consideration of the affidavit submitted by Gautam and after giving him an opportunity of hearing, the Supreme Court, directed him to pay to Subhra Chakraborty a sum of Rs 1000 every month as interim compensation during the pendency of the criminal case in the court of the judicial magistrate (First Class), Kohima, Nagaland. He was also directed to pay arrears of compensation at the same rate from the date on which the complaint was filed against him in the court of the Judicial Magistrate (First Class), Kohima by Subhra Chakraborty.
The logic behind the order of interim compensation by the apex court is that Subhra's most cherished fundamental right to live with human dignity was violated by Gautam. According to the Supreme Court fundamental rights can be enforced even against private bodies and individuals. The law laid down by the Supreme Court is that it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the court as the court can itself take cognizance of the matter and proceed suo motto or on a petition of any public spirited individual.
However this decision of the Supreme Court to award interim compensation was criticized on the ground, inter alia, that the order to award interim compensation during the pendency of the criminal case against the accused destroyed the presumption of innocence in favour of the accused and thus violated one of the fundamental tenets of criminal law. Perhaps the Court was over zealous to protect the rights of the victim and to restitute the victim. In Gudalure M. J Cherian.
Union of India26 the Supreme Court directed the Government of Uttar Pradesh to suspend the police officers and the medical officer who had conducted investigation of a rape case in a perfunctory manner and also to initiate disciplinary action for major penalty against them under their respective service/conduct rules. The Apex court also directed the State of Uttar Pradesh to pay a sum of Rs 250000 as compensation to each of the victims of rape and said that the state government may recover the compensation amount from the officers who were held guilty of lapses amounting to misconduct in the process of investigation of the rape case.